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Legal and Psychological Aspects of Holocaust Denial Kenneth Lasson University of Baltimore School of Law, [email protected]

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Legal and Psychological Aspects of Holocaust Denial Kenneth Lasson University of Baltimore School of Law, Klasson@Ubalt.Edu View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by University of Baltimore School of Law University of Baltimore Law ScholarWorks@University of Baltimore School of Law All Faculty Scholarship Faculty Scholarship 12-2007 Defending Truth: Legal and Psychological Aspects of Holocaust Denial Kenneth Lasson University of Baltimore School of Law, [email protected] Follow this and additional works at: http://scholarworks.law.ubalt.edu/all_fac Part of the Civil Rights and Discrimination Commons, First Amendment Commons, and the International Humanitarian Law Commons Recommended Citation Defending Truth: Legal and Psychological Aspects of Holocaust Denial, 26 Curr. Psychol. 223 (December 2007) This Article is brought to you for free and open access by the Faculty Scholarship at ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. University of Baltimore Legal Studies Research Paper No. 2008-12 Defending Truth: Legal and Psychological Aspects of Holocaust Denial Kenneth Lasson DEFENDING TRUTH Legal and Psychological Aspects of Holocaust Denial By Kenneth Lasson* The things I saw beggar description. I made the visit deliberately, in order to be in a position to give firsthand evidence of these things if ever, in the future, there develops a tendency to charge these allegations merely to propaganda. B General Dwight D. Eisenhower after liberating a Nazi concentration camp1 From the still-burning embers of the Holocaust we have come once again to learn the terrible truth, that the power of Evil still lurks among the nations of the world, and cannot be underestimated. Nor can the effect of the spoken and written word, which in modern times must be taken in tandem with the violence of terrorism. It has been but a half-century since the liberation of Nazi death camps, a little more than two decades since the First International Conference on the Holocaust and Human Rights,2 and a few 1 Eisenhower=s words, written in a letter to Chief of Staff George C. Marshall on April 12, 1945, are etched in stone at the United States Holocaust Memorial Museum in Washington, D.C. Eisenhower went on to say that AThe visual evidence and the verbal testimony of starvation, cruelty, and bestiality were so overpowering as to leave me a bit sick. In one room, where there were piled up 20 or 30 naked men killed by starvation, George Patton would not even enter. He said he would get sick if he did so.@ See THE PAPERS OF DWIGHT DAVID EISENHOWER: THE WAR YEARS 2616 (ALFRED D. CHANDLER, JR., ED., 1970). 2 Sponsored by the Boston College Law School Holocaust/Human Rights Research Project and the 1 short years since the United States Holocaust Memorial Museum first put on display its documentation of horror. Yet today that form of historical revisionism popularly called AHolocaust denial@ abounds worldwide in all its full foul flourish B disseminated not only on Arab streets but in ________________________ * Professor of Law, University of Baltimore School of Law. Earlier analyses of this topic appeared in part in the BALTIMORE JEWISH TIMES (April 13, 2007) and in 6 GEO.MASON L. REV. 35 (1997). American university newspapers, not only in books, articles, and speeches but in mosques and over the Internet. Anti-Defamation League of B=nai Brith, the conference took place on April 17, 1986. See Debate, Freedom of Speech and Holocaust Denial, 8 CARDOZO L. REV. 559 (1987). 2 AIsrael must be wiped off the face of the map,@ declares Mahmoud Ahmadinejad, the elected president of Iran. His primary justification B that the Jewish State=s existence is predicated upon events that never happened B is echoed throughout the Muslim world. Ahmadinejad=s true colors came through in a much ballyhooed international conference in Tehran, officially sponsored by the Iranian Foreign Ministry and billed as a AReview of the Holocaust: Global Vision,@ in December of 2006.3 In a global environment increasingly dominated by mass media of manifold form and format, we have also begun to understand that what is printed on paper or broadcast on television or bytten into cyberspace affects everyone, actually or subliminally. Conversely, what is rejected or otherwise left out is doomed to a world of communication failure, ignorance, and misunderstanding. As the generation of survivors dwindles, whose words will win? Who decides what is to appear in the vast and burgeoning marketplace of ideas? Many of those important choices are vested in editors and publishers, upon whom the Constitution confers almost unfettered discretionary authority. For the most part journalists can write, say, depict, or ignore anything they want. Freedom of thought and expression is quintessentially American B one of our most hallowed liberties, limited only by circumstances where actual harm has been caused or is reasonably perceived as imminent. If a line can be drawn at all between unfair suppression of thought on the one hand and good editorial judgment on the other, it is sometimes exceedingly faint, often entirely arbitrary, and always fundamentally subjective. The greater the opportunity for excess in the exercise of the power of the press, the more profoundly difficult the consequences in the protection of civil liberties for individuals. That axiom has been brought into sharp focus by Holocaust deniers, whose goal is both facilitated and confused by the aura of Apolitical correctness@ which nowadays surrounds a great deal of editorial decision-making. Nowhere is this more pervasive than in Academia. What should be the most receptive place for honest intellectual inquiry and discourse has instead become one where all 3 International Conference on Holocaust Opens in Tehran, BBC Worldwide Monitoring, December 11, 2006. 3 assumptions are open to debate B even documented historical facts. This has had an unsettling effect on students (especially those editing university newspapers) who have long been subjected to the pressures of political correctness. When they become entangled in the black and nefarious thickets of Holocaust denial, their exercise of editorial discretion can be acutely conflicting psychologically and confounding intellectually. So can the emotional pain suffered by victims of group libel. Remedies for that malady have not been clearly established in American law. Explored least of all is the effect upon a free society when the dissemination of demonstrably false ideas is Constitutionally protected. Must writers and speakers who deny the Holocaust be guaranteed equal access to curricula and classrooms? Should the misrepresentation of historical fact be suppressed when it is motivated by nothing more than racial animus? Should responsible libraries collect and classify work born of blatant bigotry? Have survivors been injured when their victimization has been repudiated? More profoundly, can we reject spurious revisionism, or punish purposeful expressions of hatred, and still pay homage to the liberty of thought ennobled by the First Amendment? Are some conflicts between freedom of expression and civility as insoluble as they are inevitable? Can history ever be proven as Truth? This article attempts to answer those questions. Part I describes the background and nature of Holocaust denial, tracing the Nazis= adoption of a plan for the AFinal Solution of the Jewish Problem@ through the post-War Nuremberg Trials to the present day. Part II examines the tension between free speech and historical revisionism, presenting various arguments in deference to principles of liberty and opposed to group defamation. Part III addresses the quest for truth in a free society, including psychological and geopolitical analyses of denial and anti-Semitism. 4 I. Holocaust Denial We will show you these concentration camps in motion pictures, just as the Allied armies found them when they arrived . Our proof will be disgusting and you will say I have robbed you of your sleep . I am one who received during this war most atrocity tales with suspicion and scepticism. But the proof here will be so overwhelming that I venture to predict not one word I have spoken will be denied. B Sen. Thomas Dodd (1947)4 Alas, both Eisenhower5 and Dodd seriously understated the possibilities. In recent years, the contention that there was no mass extermination of Jews and no deaths in gas chambers at the hands of the Nazis has given rise to a pervasive (if predictable) revisionist industry. Holocaust-denial books have made their way into academic and public libraries across the country and around the world, not to mention widespread dissemination over the Internet. The Nazis themselves recognized that the incredibility of what they had done would cast shadows of doubt upon any shocking eyewitness reports. Inmates at concentration camps testified that they were frequently taunted by their captors: AEven if some proof should remain and some of you survive, people will say that the events you describe are too monstrous to be believed; they will say that they are the exaggerations of Allied propaganda and will believe us, who will deny everything, and not you.@6 4 2 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INT=L MILITARY TRIBUNAL 130 (1947). Sen. Dodd served as the executive counsel to the American prosecutorial team. 5 See supra note 1. 6 PRIMO LEVI, THE DROWNED AND THE SAVED 11-12 (Raymond Rosenthal trans., Vintage Int=l 1989). 5 Indeed early newspaper accounts of the death camps were obscured by dispatches about the war=s progress, if not questioned for their veracity.7 That is why Eisenhower, after the Nazis were conquered, ordered every American soldier not committed to the front lines to bear witness to places like Auschwitz, Belsen, and Buchenwald.8 It likewise explains why the International Military Tribunal at Nuremberg was so intent on documenting all of the atrocities found by the Allied liberators.
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